Juvenile Justice in Central Asia : Current Status and the Possibility of Using the European Model

The legal protection of minors has become one of the priorities in the field of human rights protection in developed democracies, since the second half of the XX century. Facts of troubled position of children are of particular public interest. That is why the attention of scientists, politicians, public figures and media on issues related to minors in society has increased in recent years in Central Asia. The relevance of the research on the legal status of minors at the present stage of social development is stipulated by several factors: Integration of Central Asia into the world community requires bringing the current legislation in accordance with international instruments; The democratization of social relations and formation of the rule of law stipulate the importance of public authorities and civil society consolidation; Minors are one of the most vulnerable groups regarding socio-economic and moral-psychological relations. The urgency of the problems encountered in public relations, naturally affects the aim of the research, consisting in attempts to find a possible solution, clarify the reasons of the negative phenomena and to determine the mechanism of their elimination.


Introduction 1.
Democratic society has come to the realization that the legal status of the minors is the major institution that allows establishing the legal boundaries of state intervention in the family and childhood sphere.
The need for a detailed study of the minors' legal status and their defense mechanism is due, above all, to the practical significance of the respective institution.It should be noted that, it manifested itself in modern conditions of society development, particularly, when the Constitutions of the Central Asian countries have elevated new legal ideas, principles, objectives and goals of the state and social development to the highest standard level.
The improvement of the legal status of minors gives hopes on creation of democratic civil societies in Central Asia.The main value orientations of civil society and the rule of law, the foundations of law conception, a sense of security of their rights and interests are formed in childhood, and the responsibility for the improper performance of their duties and the knowledge that adults can and must be punished if they infringe the rights and interests of the minor are instilled as well.
The core set of powers of a minor, was for the first time designated standard in the Geneva Declaration of the Rights of the Child in 1924 (The Geneva Declaration of the Rights of the Child, 1924).Later they were developed in the Declaration on the Rights of the Child in 1959 (The Declaration of the Rights of the Child, 1959), the International Covenant on Economic, Social and Cultural Rights (The International Covenant on Economic, Social and Cultural Rights, 1966), the International Covenant on Civil and Political Rights (The International covenant on civil and political rights, 1966).Subsequently, the powers of a minor have been accumulated in the main international legal instrument for under age persons -the UN Convention "On the Rights of the Child" in 1989 (The Convention on the Rights of the Child, 1989).
However, despite the rather wide range of international legal instruments securing the rights and freedoms of minors, their real security and legal protection in the countries of Central Asia is lacking.Furthermore, in a number of countries with a sufficient set of human rights protection mechanisms, there are problems of legal protection for children.
For the first time, scientific interest to the special juvenile justice system appeared in the scientific literature in the early XX century, which was caused by the establishment, operation and abolition of the juvenile courts.The formation and functioning of juvenile courts in foreign countries was explored in the works of A. Bogdanovsky (1891), Yu.N. Bocharov (1912), P. I. Lublinsky (1908), and others.
Due to the raising scientific interest in juvenile justice issues, the problems of juvenile justice proceedings were actively studied in the last decade, both on the general theoretical level (N.E. Borisova (2004), I. V. Predeina (2006) etc.), and on the sectoral level (V.I. Abramov (2005), E. B. Melnikova (1999), and others).
Social aspects of the juvenile justice system (rehabilitation programs, social services in the courts, special activities of deputy judges and social workers in the courts) are covered in the works of L. M. Karnozova, P. Maksudov and M. Flyamer (2000).
Despite the fact that various aspects of the juvenile justice system had been researched, the local researchers have not developed a unified approach to the theoretical and legal substantiation of the place and the role of juvenile justice in the human rights mechanisms, understanding its essence and content.The presented research is devoted to the study of these problems.
The violations of the rights of minors have actually become an international scale problem, which requires timely and adequate responsive measures.Therefore, in our opinion, scientific and practical study of the accumulated legislative experience of foreign countries in this area is required.
Let us briefly consider the experience of juvenile justice in the European Union (EU) and the possibility of its implementation in the countries of Central Asia.This is especially topical in connection with the implementation of the EU and UNICEF joint programme "The Improvement of the Justice for Children and Child Rights Protection System in 2014-2017" (The Improvement of the Justice for Children and Child Rights Protection System in 2014-2017, 2014).

The Methodology and Methods of Research 2.
In order to achieve the research objectives there have been used scientific and special-scientific principles and methods.Among them are the historical, formal legal and comparative legal methods.
The study of the juvenile justice formation in Central Asia in general and the legal status of a child as its core is impossible without reference to the historical origins of these legal phenomena, which determines application of the historical method, including such methods of investigation as retrospection; historical comparison; historical analogy; historical typification; historical periodization.
Formal-legal method was applied for research of existing rules juvenile law, as the main instrument of analysis, systematization and classification of juvenile law regulations, its sources, legal facts, juvenile relations.In conjunction with the modeling technique, the formal-legal method allowed to create the Ombudsman structure as an effective protection mechanism of the rights of the child and offer the author's vision of the new model of juvenile justice in the Central Asian region.
The comparative legal method was used to study the doctrines, rules and organizational institutions of juvenile law.
Results and Discussion 3.

The Modern Social Status of Minors in Central Asia
The Central Asian region is currently an independent geopolitics entity.By trial and error, it generates its own internal architecture and seeks for its place in the overall global architectonics.
Integration processes in the Central Asian region follow the global trends in international relations connected with the internationalization of social life, the growing interdependence and the need of the integrating countries in strengthening national statehood, security and response to global challenges.The implementation of these directions involves, above all, the effective development of regional cooperation in the Central Asian region.
At the same time, the region is prone to various socio-economic challenges.One of them is a social and legal status of children in modern times, because children are one of the most vulnerable and disadvantaged groups.
In the course of social and economic reforms undertaken in Central Asia, children were recognized the most vulnerable socio-demographic groups.Child neglect and homelessness in the Central Asian region is one of the threats to national security.Each year, the number of parents evading upbringing and support of children is increasing, which leads to growth in the number of neglected and homeless children, who fall into a dangerous social environment, become victims of crimes and are involved in criminal activity.Often evasion of parents or persons substituting them from upbringing and support of children is accompanied by violence and abuse.Children were recognized the most vulnerable, since by virtue of their immaturity they cannot protect themselves.
The level of family violence, a surge of physical and mental disease of minors is growing.
For instance, according to the Ministry of Internal Affairs of the Kyrgyz Republic, 909 crimes were committed against the minors in 2014.Of them, 10 children were killed, 13 suffered serious bodily harm, 66 were raped and 17 were exposed to sexual assault (Child abuse in Kyrgyzstan: Are we able to protect our children?, 2015).Or else, in the Republic of Kazakhstan, as of January 1, 2015, there are total 5 199 995 children, of them, 32 362 orphans and children left without parental care, 148 652 children with disabilities in development, 13 038 children with deviant behavior, registered with the juvenile police departments.The morbidity of children tends to increase; pathology in 26% of children was revealed (The Report of the Committee for the Protection of Children's Rights of MES RK for 2014, 2015).
The changes in the socio-economic and public-political sphere of Central Asian states, led to the current situation, when the negative impact on minors increases.The situation under analysis is characterized by such factors as: -Drastic changes in social and economic policies, forced to base on market economy principles; -A high level of society criminalization and the corruption of public authorities; -Redefining the moral values, transition to the other moral guidelines; -A contradiction between the current legislation and law enforcement.
Certainly, these factors affect the younger generation in the most negative way, through the worsening conditions in the system of education, training, socialization and material support.
What measures should be taken for improvement of the legal status of minors and protection of their rights?Addressing emerging problems in the life of minors, in our view, must start from consolidation of their legal status in the current legislation, beginning with the constitutional level.
However, the Constitutions of the Central Asian countries do not clearly define the legal status of a minor, so we deduce it from the fixed legal status of the individual as a whole.

Guardianship Authorities -The Possibility of Improving The Situation of Children in Central Asia
The implementation of the fundamental right of every child to live and grow up in a family as enshrined in the Convention on the Rights of the Child is a priority.Every year, tens of thousands of children across Central Asia are left without parental custody and care and are sent to residential institutions for orphans.
The main reason why children are left without parental care is still deprivation (restriction) of parental rights because of their antisocial behaviour.At the same time, initiating the issue of deprivation of parental rights is used as an extreme measure, when all possibilities of saving biological family have been exhausted.
The institutions of state support for childhood create the necessary conditions for learning, skills development of orphans and children left without parental care.
At present, there are over five hundred institutions for orphans and children left without parental care across Central Asia.However, boarding institutions delay the psycho-emotional and social development of a child.
Preservation of blood (natural) family for a child, reducing the number of deprivation of parental rights, reducing the number of street children is one of the main problems in the prevention of child abandonment.In this regard, local executive bodies and non-governmental sector has consistently implemented measures to support the institution of the family; strengthen its educational potential; reducing the number of children, whose parents do not fulfil responsibilities for their upbringing, education and support; improvement of work in the field of guardianship.
The boards of directors of residential institutions for orphans and consultative and advisory councils of nongovernmental organizations (NGOs) work to prevent child abandonment; to strengthen the family, moral and spiritual education of children in Central Asia.The work of medical institutions and social services to prevent child abandonment has intensified.An information campaign for prevention of abandonment of children aged 0 to 3 years has been conducted in cooperation with UNICEF.
The adoption, guardianship and foster care are the priority forms of family placement for orphans and children left without parental care.
A number of measures for development of family placement for orphans and children left without parental care had been launched: the necessary normative legal acts have been adopted; divisions of the guardianship authorities in the education departments have been reinforced, information campaign for placement of orphans and children left without care parents into families has been held.
The progressive experience of the guardianship authorities is an illustration of the efforts in the Republic of ISSN 2039-9340 (print) Mediterranean Journal of Social Sciences MCSER Publishing, Rome-Italy Vol 6 No 5 September 2015 142 Kazakhstan.A system of material incentives was established for guardians, foster parents, and adoptive parents with Kazakhstan citizenship.Foster parents are paid monthly funds for the maintenance of orphans and wage from 36 thousand to 60 thousand tenge (USD 200-400).These measures allow increasing the number of abandoned children to be brought up in families from the total of orphans and children left without parental care in the country.A National Initiative "7 Steps to meet..." is implemented, one of directions of the initiative is placement of children in families.The Republican expert group is created from government agencies and NGOs representatives; their main task is to develop proposals to reform the current system of family care for orphans.The work to develop and implement pilot projects for development of the foster family institution is underway, as well as the transformation of children's homes in the family support centres.
The important mechanism of the measures taken and the government payments, introduced for motivation of the Kazakhstan citizens to adopt orphans in their families, led to the steady tendency of the orphans' number reduction in the country.For the past three years the total number of children in this category has decreased to 1993, including the children's homes residents -1695, the residential institutions for orphans -22 units.In 2014, the number of orphans has decreased in 890 people (The Report of the Committee for the Protection of Children's Rights of MES RK for 2014, 2015).
These data indicate massive efforts of Central Asian states in relation to orphans and children left without care.At the same time, there is no systematic consolidated activity of state, society and families, while effective, real and practical protection of the rights of every child is required immensely.The time has come to not only analyze the main problems of childhood, but also to influence the decisions of numerous government agencies for the protection of rights and interests of children in all areas.In this regard, the countries of Central Asia should create specialized structures that would be involved in the protection of children's rights at the state level.

Legal Policy for Protection of The Rights of Minors in The Countries of Central Asia
It is known that respect for human rights begins with observance of the rights of the child.In the past decade, the Central Asian countries have promoted the measures to bring existing legislation into conformity with international standards, based on the principle of the best observance of the rights, freedoms and interests of the child, declared in the Convention on the Rights of the Child.In this regard, the process of juvenile justice system formation in the Central Asian region becomes all the more urgent; this is the system of bodies, comprising protection of the rights, freedoms and legitimate interests of children.
In our opinion, the juvenile justice system is a system of state power and administration, conducting operations on children in order to protect their rights and interests and restore social justice.These activities are intended for children; therefore it is necessary to determine who is considered a child.
Of course, solution of this issue requires clarification of the category of persons that fall under protection of the rules forming the Institution for Juvenile Justice.Thus, assignment of all individuals under 18 to children is generally recognized in international law and enshrined in Article 1 of the Convention on the Rights of the Child, unless otherwise is stipulated by law (The Convention on the Rights of the Child, 1989).
The juvenile justice system exists in many countries; moreover, it is mandatory for signatory states to the Convention on the Rights of the Child.The problem of introduction of the juvenile justice elements has become urgent in the proceedings in Central Asia in recent years.
Extensive work on the juvenile justice formation has been carried out in the Central Asian countries, certain progress has been made.The analysis of the current state of juvenile justice institution gives a satisfactory prospect on the situation regarding the children's rights enshrined in the Convention and national legislation.
National legislation regulations were brought to compliance with international standards and international treaties.There are various governmental and non-governmental organizations dealing with children's rights.The procedures of control, monitoring and reporting on children's rights are carried out.The tendency to the children's rights status improvement over the last three years period is worth mentioning.Along with the tangible indicators of positive change dynamics, a sufficiently high level of recognition of the child' legal status as a full member of society among adults is registered.
However, considering the mentioned trends it is sensible to take into account the gaps and weaknesses in the security and protection of the rights that affect the value and function of the rights of children in everyday life.
Empirically it is documented that the current legislation is not fully aligned with the Convention and does not provide the autonomy of an individual child as a person through proven right.This is connected to the impaired identification of children with the basic rights, specified in the Convention.
The limited dissemination of information about the Convention and the rights of the child has a marginal impact on adults and children.To some extent, this determines the low self-esteem prevailing in children of their legal status as an object of restrictions on rights.
In the absence of an effective system of the rights protection and assistance, many children simply do not produce the need for their use, especially since often no one remembers about them in everyday life.
The essential feature of the low effectiveness of the rights protection is the absence of a separate system for children complaints application and processing.
The international experience shows that the necessity for specialized institutions for the rights of minors occurs when the existing institutions dissatisfy the decision of the control tasks and there is requirement for additional protection.A large number of gaps and deficiencies in the legislative framework of the Central Asian states and congestion of supervising authorities and others contribute to this tendency.
Thus, the prospects analysis of the legal regulations for the protection of minors has revealed that only systematic, unforced activities in this area may help reduce the number of offenses carried out by minors and effective socialization of this category of persons.

European Mechanism for The Protection of Minors and International Standards
The rights and freedoms of a person and citizen, their recognition, respect and protection is the foundation for the democratic government power of modern states.The origin and protection of human rights institution was initially implemented within the scope of national legislation, although the importance of certain acts had crossed the nationstates borders and contributed to the development of national consciousness in other countries.
The formation of the national system of human rights protection is inseparably linked to introduction of the basic principles, embodied in the Universal Declaration of Human Rights (The Universal Declaration of Human Rights, 1948), into people's minds and state rule-making.Protection of human rights and freedoms is a system of statutory assets, techniques and methods for prevention, elimination and suppression of crime, to ensure the protection of individual rights and freedoms.
In relation to the juvenile, this protection mechanism includes a number of important aspects: a comprehensive and effective regulation of the legal means of relations, connected with the implementation of child rights in reality; improving the quality of legislation and the overall regulatory framework in this sphere of legal regulation, its improvement; careful elaboration of procedural rules in criminal, civil and other cases, directly or indirectly related to the rights and interests of the child; establishing responsibility measures (legal sanctions) for violation of the rights of children, and in some cases, more severe in comparison to similar attacks on the rights of adults (for example, life and health, personal security of children); efficient and effective law enforcement (court, prosecutor's office, police, special inspections), various natural and legal persons (guardianship agencies, educational institutions, cultural institutions, etc.), aimed at preventing and combating crimes and other offenses against children; to impose liability and punishment on perpetrators; supervisory activities of special agencies (court, prosecutor's office, investigating authorities); control of state bodies over their subordinate units; elaboration of legal service of the public, private and other institutions and organizations.
For the protection of rights and freedoms of minors, the existing legislation provides a specific set of tools and methods of protection: an international legal mechanism for protection of human rights; judicial protection; administrative actions of the executive authority; legitimate defense of their human rights.
Many of these defense mechanisms are successfully implemented in Central Asian countries.But despite the numerous regulations and existing mechanisms, the problem of the protection of minors has not been solved.
The socio-economic situation in the country dictates the urgent need to develop scientifically sufficient set of measures, creating an effective system of measures for the realization of children's rights.
In the context of the minors' protection issue, both national and international protection mechanisms cause great interest.
It should be noted that such acts as the English Bill of Rights in 1689 (A.G. Mower, 1997), the American Bill of Rights of 1789-1791, The French Declaration of the Rights of Man in 1789, and others had a huge impact on the development of human rights and freedoms and their protection (Collection of documents on the modern times history, 1990).Since the UN Charter adoption began the cooperation of states at the international level in the field of securing and protecting human rights.International legal instruments on human rights, as well as the constitution of the European democracies are recognized universal patterns, acceptable and necessary for all regions of the world.
Article 8 of the Universal Declaration of Human Rights states: "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law" (The  , 1948).The International Covenant on Civil and Political Rights obligates each Party to this Covenant to "ensure that the right to a remedy for any person, claiming such a remedy, was determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the Party and develop the possibilities of judicial remedy" (The International covenant on civil and political rights, 1966).
The first step in the legislative health protection of children and protection of their rights was the Geneva Declaration of the Rights of the Child, adopted by the League of Nations in 1924 (The Geneva Declaration of the Rights of the Child, 1924).
The next important step was adoption of the Declaration of the Rights of the Child by the United Nations in 1959, which declared social and legal principles of protection and welfare of children.Compliance with the 10 provisions that compose the Declaration of the Rights of the Child must "provide children with a happy childhood" (The Declaration of the Rights of the Child, 1959).
By the end of 1970 the level of society development, status of children, new problems -showed that declarative principles were not enough.Legal documents were required that, under the legal rules, would secure the measures and ways of protecting children's rights.For this purpose, the Declaration on the Protection of Women and Children in Emergency and Armed Conflict has been adopted in 1974 (The Declaration on the Protection of Women and Children in Emergency and Armed Conflict, 1974), in 1986 -the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption nationally (host family -compatriot) and internationally (host family -foreigners) levels (The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, 1986).
It should be noted that in 10 years period since 1979, the specialists from many countries, participating in the UN Commission on Human Rights, have developed the text of the new provisions on the rights of the child, which would be taken into account as much as possible all aspects of life in society.This document is called the Convention on the Rights of the Child and it was adopted by the UN General Assembly on 20 November 1989 (The Convention on the Rights of the Child, 1989).
It is worth mentioning that the Convention was the first international document that fully outlined the economic, social and cultural, civil and political rights of children.However, the list of children's rights set out in this important and significant document was not complete due to the emergence of new life aspects that require legal support.
So ten years after adoption of the Convention, in order to regulate the rights of children in armed conflicts and the trafficking of children, child prostitution and child pornography there have been developed and adopted two additional Optional Protocols opened for ratification in The special importance of the Convention is that it establishes a mechanism for international control over observance of the rights of children, which is conducted by the Committee on the Rights of the Child consisting of 10 experts of high moral character and recognized competence in the field of protection of children's rights.This control is intended for examination of reports of States parties on the measures they have taken to secure the rights proclaimed by the Convention and on the progress made in implementing them.
In addition to the conventional control, there is also a special kind of international control, such as the introduction of Special Rapporteur; that is one of special procedures mechanisms at the United Nations.Special Rapporteurs monitor, investigate, provide advice and prepare public reports on the following issues: violence against children, on children and armed conflict, trafficking of children, child prostitution and child pornography, on trafficking in persons, especially women and children.
However, the above-mentioned types of international control had been insufficient for the full protection of children's rights.According to a number of international experts, the lack of control in the Convention that would consider individual complaints is a serious shortcoming of the international system of protection of children's rights.
In this context, a special procedure has been developed for individual complaints from children or on their behalf.Optional Protocol to the UN Convention on the Rights of the Child on a communications procedure was approved with General Assembly resolution 66/138.66/138.17 on December 19, 2011.In this document preamble it is implied that the protocol would reinforce and complement national and regional mechanisms and allow children submit complaints about violations of their rights.The Optional Protocol provides two procedures for communications addressing: individual communications; inter-state communications; reports of non-compliance to obligations by a state-party under the Convention on the Rights of the Child, the Optional Protocols to the Convention on trafficking of children, child prostitution and child pornography and on the involvement of children in armed conflict.
According to the procedure of individual communications acceptance for consideration, the Committee does not consider all the received messages and sets 8 grounds for their inadmissibility; they are anonymity, invalidity, failure to present in writing, misuse of the right to submit such communications or incompatibility with the provisions of the Convention and Optional Protocols, consideration of the matter by the Committee or another procedure of international investigation, committing violations prior entry of the Protocol into force and failure to submit the communications within one year from the date of exhaustion of domestic remedies.
UNICEF -United Nations Children's Fund plays an important role in solving the problems of children on the international level.UNICEF is built on the principles of cooperation with the government, NGOs and other international funds and organizations.
Summing up, it may be noted that there was a system of protection of children's rights at the international level, supported by appropriate legal instruments in the world at the beginning of the XXI century.As for the countries of Central Asia, their main task is to ensure the practical principles of the Convention on Children's Rights, the recommendations of the United Nations.
Despite the measures of direct or indirect protection of children's rights applied at the international level, their effectiveness cannot be praised highly.The fact that it is difficult for the human rights organizations, and even individuals, to sort out the multiplicity of their functions and, respectively, the applicability of a mechanism to this violation of the rights of the child (even if there is comprehensive information on the availability and rules of documents admission to international organizations).Furthermore, duplication in some matters and lack of coordination in the other is typical for conventional control mechanisms.
Therefore, national mechanisms of the rights of minors' protection are much more effective.A system of legal protection of the interests of children in relation to the new socio-economic conditions was virtually re-created in Central Asia.

The Ombudsman as an Important Tool of Protection of The Rights of Children in The World
Formation of the democratic rule of law in Central Asia provides a solution to the complex and multifaceted set of problems.Human rights have become a major landmark in the activities of states, including all of the power structures of government bodies and officials.Enforcement of the rights of children as full citizens is one of the areas of human rights work of both state and public organizations.That is why there are different ways of protecting the rights and the extent of their effectiveness in different countries varies.
In this regard, today there are created specialized ombudsmen, including the Children's Ombudsman all over the world.
The world experience has confirmed the high efficiency of the institution.For the first time the position of Parliamentary Commissioner appeared in 1809 in Sweden, which borrowed the term from the Germanic tribes at some point in history.
The first ombudsman of general competence appeared in Sweden (specialized have been introduced in the second half of XX).Swedish origins of the institution can be traced in other countries borrowing the name of the authority -the Ombudsman, as it was originally named in Sweden.Despite the fact that the word "ombudsman" can be translated into other languages, for example, as "representative", "attorney", "delegate", "lawyer", "authorized", afterwards the word "ombudsman" was used without translation (M.L. Razumovskaya, 1999a).In a number of states it has become the official name of the position (except for the Sweden itself, Finland, Namibia, Denmark, Jamaica, Cook Islands, in a number of Canadian provinces, US states, states of India).In other states, any other name can be formally adopted, but informally (in the press, literature) untranslatable name "Ombudsman" is used widely.Therefore, despite the differences in the name of that body in individual states, its historic first name "the Ombudsman", which has a general and understandable value, has been preserved.
The development of this institution in the XX century led to the emergence of specialized Ombudsmen: for health, military, juvenile, on national minorities, for information, etc.Thus, children's ombudsmen were introduced, in particular, in Norway (1981), in French-speaking Community of Belgium (1991), in Sweden (1993).
For instance, the position of Ombudsman was introduced in Poland in 1987; it operates under the Department of 2000: the Optional Protocol to the Convention on the Rights of the Child concerning Trafficking of Children, Child Prostitution and Child Pornography, 2000 (Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000); the Optional Protocol to the Convention on the Rights of the Child on a communications procedure, in 2011 (Optional protocol to the Convention on the rights of the child on a communications procedure, 2011).Currently, the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict is ratified by 139 States, and the Optional Protocol to the Convention on the Rights of the Child on the trafficking of children, child prostitution and child pornography is ratified by 142 countries.